Constitutional Chess

Since the passage of the "Judiciary Reorganization Bill of 1937" (and the attempted "packing" of the Supreme Court by FDR), the rules of interpreting the Constitution have been rigged to support a progressive ideology. The Constitution has become "a living document." The Constitution means either whatever the Congress wants it to mean or whatever five out of the nine justices sitting on the Court at the time say it means.

Imagine that our Constitution is the equivalent of the rules of the game of chess. How would the modern Supreme Court and our progressive Congress conduct a chess tournament? How would they interpret the rules of the game? In making this comparison, I hope to demonstrate the inanity of modern constitutional interpretation and portray the legislative abuses of the Constitution since the late 1930s. Let the games begin.

The National Chess Federation runs the tournament. The federation is made up of three separate divisions, each with its own responsibilities. Here is how the game is supposed to be played:

1) The congress of the federation writes all of the procedures for the tournament -- but they do not write the rules for the game of chess. Those rules have been around for hundreds of years. The congress can determine the nature of the tournament (round robin, double elimination, etc.) but it cannot rewrite the basic rules of the game. If the congress could rewrite the rules of chess, we would not be playing chess. We would be playing some new game that the congress had created.

2) The chess federation has a president. It is his (or her) job to see that the rules of the tournament and the rules for the game of chess are properly followed and enforced.

3) The third division of the federation is a panel of judges. Should there be any dispute about whether the tournament procedures are ambiguous, or conflict with or inhibit unfairly the game of chess, it is the judges' job to interpret the congress's procedures. The panel of judges may overturn the procedures enacted by the congress if the procedures interfere with the rules of the game. They may also overturn the president's enforcement of those procedures if the president's actions conflict with the rules.

At least in theory, that's how the tournament is set up. Here is what has happened in the last eighty years when we have played constitutional chess.

Having won the coin toss, I played the white pieces in my first match, so I got the first move. But one of the referees stopped me before I could even get started.

He told me, "Your opponent is less skilled in chess than you are. Through no fault of his own, and because of decades of discrimination against checkers-players, the congress has decided that he will have the first move -- to even the odds, so to speak."

I immediately appealed to the panel of judges. I argued that the rules should be applied equally to all players in the tournament. One of the judges said to me [i]:

It has been 25 years since Justice Powell first approved the use of the relative skill of checkers-players to further an interest in chess tournament diversity in the context of public chess matches. Since that time, the number of checkers applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of the relative skill of checker players will no longer be necessary to further the interest approved today.

"Wait a second," I argued. "Don't the rules say that no person shall be denied equal protection under the rules of chess [ii]? I am a person. Why do I need to wait 25 years to have the first move? I won the coin toss."

The judge replied,

We are mindful, that "[a] core purpose of the Fourteenth Amendment to the rules of chess was to do away with all Chess Federation imposed discrimination based on the relative skill of checkers players." Palmore v. Sidoti, 466 U. S. 429, 432 (1984). Accordingly, the checkers player's first move policies must be limited in time.

In other words, maybe I could go first (and the game might be played according to the actual rules) if I asked the judges again...after twenty-five years.

As I walked back to my match, I watched as the members of the congress removed one piece from all of the lower-ranked players and shared the extra pieces with the three or four grandmasters in the room. (I was not one of the grandmasters.)

"You can't do this," I told the member of congress who came to my table and grabbed one of my knights. "The rules clearly state--" I started to complain. But the member of congress stopped me before I could finish my protest.

"We have a crisis! Some players are too big to fail," he explained. The panel of judges remained silent to the objections of the lower-ranked players. Not surprisingly, the grandmasters, with their extra pieces, won most of the games.

At the beginning of my next match, the strangest thing happened. Before the game started, one of the referees took my queen and exchanged it for one of my opponent's pawns.

As he switched the pieces the referee said, "We are condemning your queen and taking it from you. Don't even try to complain. We are well within our rights. According to the 5th amendment to the rules of chess, 'chess pieces cannot be taken for chess federation use without just compensation [iii].' We took your queen but we gave you your opponent's pawn. You have been justly compensated."

"But my opponent is not the chess federation," I objected. "He is my opponent. And I want my queen -- not his pawn." (In fact, my opposition in this particular match was another grandmaster. He was even sponsored by and playing for a huge private corporation.)

I ran up to the panel of judges and demanded that they rule in my favor and give me back my queen.

The judges replied [iv]:

This chess court long ago rejected any literal requirement that condemned queens be put into use for the ... chess federation. Id., at 244. Rather, it has embraced the broader and more natural interpretation of chess federation use as "chess federation purpose."

"What?" I screamed. "That makes no sense at all. Your purpose was to give an advantage to my opponent."

The judges answered:

The taking of the player's queen before us, however, would be executed pursuant to a "carefully considered" development plan.

"What 'development plan'? You mean my opponent has more money and power than I do, so he bought my queen?"

Allowing the chess federation to take a player's queen solely for chess federation purposes is bad enough, but extending the concept of chess federation purpose to encompass transferring the queen to a grandmaster player guarantees that these losses will fall disproportionately on poor chess players.

I lost the game and was sent to the "consolation" division of the chess tournament. In my final match, I noticed that my opponent had a chess piece that I had never seen before.

I called over one of the judges to our table. "What's that new chess piece?" I asked him.

"That's a 'wabbit,'" he answered.

"What's a 'wabbit'? And why does my opponent get one and I don't?"

"Your opponent is a female. She has a personal right to a wabbit. She may use her wabbit to remove any of your (or her) pieces off of the board at any time. It is her very personal choice. It is guaranteed to her in the rules of chess. Haven't you read the rules?"

"I have read the rules -- several times," I replied. "I have never seen the rule that female chess players have a right to a wabbit."

"It isn't specifically spelled out in the rules of chess," the judge told me, and looked at me as if I were a dunce. He went on to explain:

... specific guarantees in the rules of chess have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create the right to a wabbit [v].

I tipped over my king and resigned.

Larrey Anderson is a writer, a philosopher, and submissions editor for American Thinker. His award-winning novel is The Order of the Beloved. His latest book is the memoir, Underground: Life and Survival in the Russian Black Market.

[i] See the Supreme Court's upholding of affirmative action in Grutter v. Bollinger, 539 U.S. 306 (2003). I have substituted "checkers player" for "race" and so forth, in the two quotes that follow. The actual verbiage of the case can be read here.

[iv] The quotes that follow are rewritten from the Supreme Court findings found here in Kelo vs. New London. This is the gist of the case (as I have described elsewhere):

The New London Development Corporation recommended acquiring fifteen privately owned homes on the bank of the river and turning the land into a parking lot, small shopping mall, and luxury hotel -- all for the benefit of Pfizer. The city argued not that the area was "blighted," but that the city's economy was "depressed." The land would yield more tax revenue if the fifteen families that lived in those riverfront homes were sent packing. The U.S. Supreme Court agreed and our homes (middle-class homes) will be torn down, with the property sold to Pfizer and other business interests.

[v] I have paraphrased Justice Douglas's infamous quote from Griswold v. Connecticut, 381 U.S. 479. The actual quote is here. Griswold was used as the basis for a constitutional "right" to privacy and subsequently, the right to abortion in Roe v. Wade.

Since the passage of the "Judiciary Reorganization Bill of 1937" (and the attempted "packing" of the Supreme Court by FDR), the rules of interpreting the Constitution have been rigged to support a progressive ideology. The Constitution has become "a living document." The Constitution means either whatever the Congress wants it to mean or whatever five out of the nine justices sitting on the Court at the time say it means.

Imagine that our Constitution is the equivalent of the rules of the game of chess. How would the modern Supreme Court and our progressive Congress conduct a chess tournament? How would they interpret the rules of the game? In making this comparison, I hope to demonstrate the inanity of modern constitutional interpretation and portray the legislative abuses of the Constitution since the late 1930s. Let the games begin.

The National Chess Federation runs the tournament. The federation is made up of three separate divisions, each with its own responsibilities. Here is how the game is supposed to be played:

1) The congress of the federation writes all of the procedures for the tournament -- but they do not write the rules for the game of chess. Those rules have been around for hundreds of years. The congress can determine the nature of the tournament (round robin, double elimination, etc.) but it cannot rewrite the basic rules of the game. If the congress could rewrite the rules of chess, we would not be playing chess. We would be playing some new game that the congress had created.

2) The chess federation has a president. It is his (or her) job to see that the rules of the tournament and the rules for the game of chess are properly followed and enforced.

3) The third division of the federation is a panel of judges. Should there be any dispute about whether the tournament procedures are ambiguous, or conflict with or inhibit unfairly the game of chess, it is the judges' job to interpret the congress's procedures. The panel of judges may overturn the procedures enacted by the congress if the procedures interfere with the rules of the game. They may also overturn the president's enforcement of those procedures if the president's actions conflict with the rules.

At least in theory, that's how the tournament is set up. Here is what has happened in the last eighty years when we have played constitutional chess.

Having won the coin toss, I played the white pieces in my first match, so I got the first move. But one of the referees stopped me before I could even get started.

He told me, "Your opponent is less skilled in chess than you are. Through no fault of his own, and because of decades of discrimination against checkers-players, the congress has decided that he will have the first move -- to even the odds, so to speak."

I immediately appealed to the panel of judges. I argued that the rules should be applied equally to all players in the tournament. One of the judges said to me [i]:

It has been 25 years since Justice Powell first approved the use of the relative skill of checkers-players to further an interest in chess tournament diversity in the context of public chess matches. Since that time, the number of checkers applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of the relative skill of checker players will no longer be necessary to further the interest approved today.

"Wait a second," I argued. "Don't the rules say that no person shall be denied equal protection under the rules of chess [ii]? I am a person. Why do I need to wait 25 years to have the first move? I won the coin toss."

The judge replied,

We are mindful, that "[a] core purpose of the Fourteenth Amendment to the rules of chess was to do away with all Chess Federation imposed discrimination based on the relative skill of checkers players." Palmore v. Sidoti, 466 U. S. 429, 432 (1984). Accordingly, the checkers player's first move policies must be limited in time.

In other words, maybe I could go first (and the game might be played according to the actual rules) if I asked the judges again...after twenty-five years.

As I walked back to my match, I watched as the members of the congress removed one piece from all of the lower-ranked players and shared the extra pieces with the three or four grandmasters in the room. (I was not one of the grandmasters.)

"You can't do this," I told the member of congress who came to my table and grabbed one of my knights. "The rules clearly state--" I started to complain. But the member of congress stopped me before I could finish my protest.

"We have a crisis! Some players are too big to fail," he explained. The panel of judges remained silent to the objections of the lower-ranked players. Not surprisingly, the grandmasters, with their extra pieces, won most of the games.

At the beginning of my next match, the strangest thing happened. Before the game started, one of the referees took my queen and exchanged it for one of my opponent's pawns.

As he switched the pieces the referee said, "We are condemning your queen and taking it from you. Don't even try to complain. We are well within our rights. According to the 5th amendment to the rules of chess, 'chess pieces cannot be taken for chess federation use without just compensation [iii].' We took your queen but we gave you your opponent's pawn. You have been justly compensated."

"But my opponent is not the chess federation," I objected. "He is my opponent. And I want my queen -- not his pawn." (In fact, my opposition in this particular match was another grandmaster. He was even sponsored by and playing for a huge private corporation.)

I ran up to the panel of judges and demanded that they rule in my favor and give me back my queen.

The judges replied [iv]:

This chess court long ago rejected any literal requirement that condemned queens be put into use for the ... chess federation. Id., at 244. Rather, it has embraced the broader and more natural interpretation of chess federation use as "chess federation purpose."

"What?" I screamed. "That makes no sense at all. Your purpose was to give an advantage to my opponent."

The judges answered:

The taking of the player's queen before us, however, would be executed pursuant to a "carefully considered" development plan.

"What 'development plan'? You mean my opponent has more money and power than I do, so he bought my queen?"

Allowing the chess federation to take a player's queen solely for chess federation purposes is bad enough, but extending the concept of chess federation purpose to encompass transferring the queen to a grandmaster player guarantees that these losses will fall disproportionately on poor chess players.

I lost the game and was sent to the "consolation" division of the chess tournament. In my final match, I noticed that my opponent had a chess piece that I had never seen before.

I called over one of the judges to our table. "What's that new chess piece?" I asked him.

"That's a 'wabbit,'" he answered.

"What's a 'wabbit'? And why does my opponent get one and I don't?"

"Your opponent is a female. She has a personal right to a wabbit. She may use her wabbit to remove any of your (or her) pieces off of the board at any time. It is her very personal choice. It is guaranteed to her in the rules of chess. Haven't you read the rules?"

"I have read the rules -- several times," I replied. "I have never seen the rule that female chess players have a right to a wabbit."

"It isn't specifically spelled out in the rules of chess," the judge told me, and looked at me as if I were a dunce. He went on to explain:

... specific guarantees in the rules of chess have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create the right to a wabbit [v].

I tipped over my king and resigned.

Larrey Anderson is a writer, a philosopher, and submissions editor for American Thinker. His award-winning novel is The Order of the Beloved. His latest book is the memoir, Underground: Life and Survival in the Russian Black Market.

[i] See the Supreme Court's upholding of affirmative action in Grutter v. Bollinger, 539 U.S. 306 (2003). I have substituted "checkers player" for "race" and so forth, in the two quotes that follow. The actual verbiage of the case can be read here.

[iv] The quotes that follow are rewritten from the Supreme Court findings found here in Kelo vs. New London. This is the gist of the case (as I have described elsewhere):

The New London Development Corporation recommended acquiring fifteen privately owned homes on the bank of the river and turning the land into a parking lot, small shopping mall, and luxury hotel -- all for the benefit of Pfizer. The city argued not that the area was "blighted," but that the city's economy was "depressed." The land would yield more tax revenue if the fifteen families that lived in those riverfront homes were sent packing. The U.S. Supreme Court agreed and our homes (middle-class homes) will be torn down, with the property sold to Pfizer and other business interests.

[v] I have paraphrased Justice Douglas's infamous quote from Griswold v. Connecticut, 381 U.S. 479. The actual quote is here. Griswold was used as the basis for a constitutional "right" to privacy and subsequently, the right to abortion in Roe v. Wade.